Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK W.P.(C) No.7612 of 2025 In the matter of an Application under Articles 226 and 227 of the Constitution of India *** Dr. Bharat Chandra Bhuyan … Petitioner -VERSUS- Commissioner (Appeals), GST, CX & Customs, Bhubaneswar And Others. … Opposite Parties Counsel appeared for the parties: For the Petitioner : Mr. Saswat Kumar Acharya, Advocate For the Opposite Parties : Mr. Sujan Kumar Roy Choudhury, Senior Standing Counsel P R E S E N T: HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 13.05.2025 :: Date of Order : 13.05.2025 WP(C) No.7612 of 2025 Page 1 of 16
Decision
ORDER Assailing Order dated 23.12.2024 of the Commissioner (Appeals), Bhubaneswar refusing to exercise the power under Section 85 of the Finance Act, 1994 by condoning delay in presenting the Appeal No.54/ST/RKL- GST/2023, the Petitioner has approached this Court by way of filing this writ petition craving to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India. 2. Mr. Saswat Kumar Acharya, learned counsel appearing for the Petitioner submitted that the aforesaid appeal under Section 85 of the Finance Act, 1994 was directed against Order-in-Original dated 09.04.2024 passed under Section 73 of the said Act for the financial year 2015-16 raising demand comprising of service tax and penalty. The said order dated 09.04.2024 was served on the Petitioner on 12.04.2024. 2.1. Relying on provisions of sub-section (3A) of Section 85 of the Finance Act, 1994, he submitted that the appeal was required to be “presented within two months from the date of receipt of the decision or order of such adjudicating authority”. Therefore, the Appellate Authority is empowered under proviso to sub-section (3A) ibid. to condone the delay in presenting the appeal within a further period of one month. Thus, in toto a WP(C) No.7612 of 2025 Page 2 of 16 period of three months is available for the petitioner to show sufficient cause for the purpose of maintaining the appeal under Section 85 of the Finance Act. The Petitioner having filed the appeal on 12.07.2024, the Appellate Authority should have exercised the power under proviso to sub-section (3A) of Section 85 of the Finance Act, 1994. 2.2. He strenuously urged that since the Appellate Authority has not applied his conscientious discretion as conferred on him under the statute misdirected himself in computation of period of limitation erroneously and improper application of mind failed to calculate the condonable period of limitation envisaged under proviso to sub-section (3A) of Section 85. The Appellate order is liable to be set aside for fresh adjudication. 2.3. Mr. Saswat Acharya, learned counsel vehemently contended that had the appellate authority afforded an opportunity of hearing on such condonation of delay he would have explained with sufficient reason vis-(cid:224)-vis statutory provisions. 3. Mr. Sujan Kumar Roy Choudhury, learned Senior Standing Counsel appearing for the CGST, CX and Customs Department submitted that no infirmity can be imputed against the appellate order. No indulgence need be shown to the Petitioner. There is no dispute, as it WP(C) No.7612 of 2025 Page 3 of 16 emanate from the appellate order, that Order-in-Original was served on the Petitioner on 12.04.2024 and the appeal was filed on 12.07.2024. Since the total period covered including condonable period is three months (two months + one month), the appeal being presented beyond the condonable period, the Appellate Authority is justified in rejecting the appeal being barred by limitation thereby he upheld the assessment order under Section 73 of the Finance Act. 3.1. Mr. Sujan Kumar Roy Choudhury, learned Senior Standing Counsel would submit that grant of opportunity would be futile exercise inasmuch as fact of presentation of appeal beyond three months (including the condonable period) is apparent from the record. Granting further opportunity would protract the appeal. Since the Appellate Authority ceases to have power under Section 85 of the Finance Act, 1994 after three months from the date of receipt of Order-in-Original passed under Section 73 of the said Act, there is no scope for him to issue notice inviting explanation. 3.2. Therefore, he insisted for dismissal of the writ petition. 4. Having heard learned counsel for respective parties, this Court considered the material available on record. On perusal of order dated 23.12.2024 passed in appeal, it surfaced that the Order-in-Original dated 09.04.2024 WP(C) No.7612 of 2025 Page 4 of 16 was served on the Petitioner on 12.04.2024. Thus, the period of limitation is to be reckoned from the next date, i.e., 13.04.2024. 4.1. The last date for presenting the appeal within the specified period of two months from this date (13.04.2024) would fall on 12.06.2024 and the condonable period of one month would lapse on 12.07.2024. Concededly by counsel both the parties, the appeal was presented on 12.07.2024. It is, therefore, abundantly clear that the Appellate Authority has misguided himself and his approach in computation of period of limitation is tainted. The Appellate Order dated 23.12.2024 is faulted with in view of Section 85(3A) of the Finance Act, 1994 read with Section 12 of the Limitation Act, 1963 and Section 9 read with Section 3(35) of the General Clauses Act, 1897. 4.2. The relevant provisions may be referred to, to have better comprehension of computation of period of limitation contained in Section 85 of the Finance Act, 1994: (i) Section 85(3A) of the Finance Act: “An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the WP(C) No.7612 of 2025 Page 5 of 16 President, relating to service tax, interest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.” (ii) Section 12 of the Limitation Act, 1963: “12. Exclusion of time in legal proceedings.— (1) (2) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded. In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. (3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded. (4) In computing the period of limitation for an application to set aside an award, the time WP(C) No.7612 of 2025 Page 6 of 16 requisite for obtaining a copy of the award shall be excluded. Explanation.— In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.” (iii) Sections 3 and 9 of the General Clauses Act, 1897: “3. Definitions.— In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or context,— *** (35) “month” shall mean a month reckoned according to the British calendar; *** 9. Commencement and termination of time.— (1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of time, to use the word “from”, and, for the purpose of including the last in a series of days or any other period of time, to use the word “to”.” WP(C) No.7612 of 2025 Page 7 of 16 4.3. Having diligently considered the submissions and counter arguments of the learned counsel for the respective parties vis-(cid:224)-vis aforesaid provisions of different statutes, this Court in order to have perspective of computation of limitation takes aid of State of W.B. Vrs. Rajpath Contractors & Engineers Ltd., (2024) 7 SCC 257, wherein it has been held: “8. As per Section 12(1) of the Limitation Act, the day from which the limitation period is to be reckoned must be excluded. In this case, the period of limitation for filing a petition under Section 34 will have to be reckoned from 30.06.2022, when the appellants received the award. In view of Section 12(1) of the Limitation Act, 30.06.2022 will have to be excluded while computing the limitation period. Thus, in effect, the period of limitation, in the facts of the case, started running on 01.07.2022. The period of limitation is of three months and not ninety days. Therefore, from the starting point of 01.07.2022, the last day of the period of three months would be 30.09.2022. As noted earlier, the pooja vacation started on 01.10.2022.” 4.4. It is apposite to refer to the principle of calculation of period of limitation as suggested in the judgment of the Hon’ble Supreme Court in the case of Rameshchandra Ambalal Joshi vs. State of Gujurat and another, (2014) 11 SCC 759, wherein it has been observed as follows: “*** WP(C) No.7612 of 2025 Page 8 of 16 12. The first question which calls for our answer is the meaning of the expression “month” : whether it would mean only a period of 30 days and, consequently, whether six months would mean a period of 180 days. The word “month” has been defined under Section 3(35) of the General Clauses Act to mean a month reckoned according to the British calendar. Therefore we cannot ignore or eschew the word “British calendar” while construing “month” under the Act. Accordingly, we are of the opinion that the period of six months cannot be calculated on 30 days in a month basis. Therefore, both the modes of calculation suggested by Mr Ahmadi do not deserve acceptance and are rejected accordingly. ***